PASCAL et al. v. HYNES. (No. 30125.) (Supreme Court of Iowa. April 10, 1915.) 1. WATERS AND WATER COURSES

150-SUR

FACE WATERS-DRAINAGE-LICENSE-ESTOP-
PEL TO REVOKE.

Where a drain was laid through lands of plaintiffs with their consent, and surface water carried through it from lands of defendant's predecessor in title, as well as from part of plaintiffs', with the assent of the latter for more than ten years, defendant acquired a prescriptive right to the use of the drain.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 153; Dec. Dig. 150.]

2. WATERS AND WATER COURSES 150-SURFACE WATERS PRESCRIPTIVE RIGHT OF

DRAINAGE "ABANDONMENT.' Where defendant had acquired a prescriptive right in a tile drain in plaintiffs' land, by beginning the construction of a new drain to effect such drainage in another way on account of a controversy with the plaintiffs over her right, she did not thereby abandon the prescriptive right, since to an abandonment, the intention to abandon, and the completed act are both essential.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 153; Dec. Dig. 150.

For other definitions, see Words and Phrases,
First and Second Series, Abandon.]
3. WATERS AND WATER COURSES
FACE WATERS

150-SURPRESCRIPTIVE RIGHT OF DRAINAGE-EXTENSION OF DRAIN.

Where defendant's predecessor in title had a prescriptive right in a tile drain in plaintiffs' land, an agreement to extend such drain, whereby defendant's predecessor undertook to keep it in repair and to contribute half the expense of draining the pond into which it emptied, whenever the plaintiffs should so elect, was no waiver of the existing easement, since it recognized such easement.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 153; Dec. Dig. 150.]

4. WATERS AND WATER COURSES 157 DRAINS LICENSE TO EXTEND-BREach of

AGREEMENT-EFFECT.

Where defendant failed to repair a drain as her predecessor in title had agreed to do when securing a license to extend such drain then existing in plaintiffs' land, nothing having been said concerning the manner of enforcing the agreement, a right of forfeiture of the easement or a revocation of the license to extend the drain could not be inferred, unless such license was without consideration.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 185; Dec. Dig. 157.]

5. WATERS AND WATER COURSES 157-SURFACE WATERS-DRAIN-LICENSE TO EXTEND

-CONSIDERATION.

In an action to restrain the construction of a tile drain, where defendant had a pre-existing easement of drainage in plaintiffs' lands, and where the construction of the new drain would cause no material increase in the discharge, plaintiffs had no ground for relief.

Water Courses, Cent. Dig. § 189; Dec. Dig. [Ed. Note.-For other cases, see Waters and 1582.]

Appeal from District Court, Clinton County; A. P. Barker, Judge.

The facts appear in the opinion. Both parties appeal, plaintiffs being herein called appellants. Affirmed on plaintiff's' appeal, and reversed on defendant's appeal.

Ellis & McCoy and Pascal, Pascal & Pascal,
Wolfe &
all of Clinton, for appellants.
Wolfe, of Clinton, for appellee.

LADD, J. Plaintiffs own the W. 1⁄2 N. W. 14 of section 9 and the defendant the E. 1⁄2 of said quarter and the E. 2 S. W. 4 of section 4 immediately above it. Between the sections is a highway which has been graded so as to be about 31⁄2 feet above the natural surface. Near the southwest corner of the SO in section 4 was a pond of about two acres. Across the road to the southeast was a smaller pond. A swale extended from near these ponds in a southwesterly direction into the land of plaintiffs, and then southerly for a distance of about 80 rods, emptying into a larger pond of about 3 acres, mostly in the plaintiffs' land, but somewhat over the line on that of defendant.

The evidence leaves no doubt but that there was a natural water course extending from a point in plaintiffs' land about 50 feet south of the highway south to the pond last mentioned, with a fall of nearly 25 feet, and we are satisfied such water course originally extended across the northwest corner of defendant's south 80 into the highway and drained the surface water settling in the pond in her north 80. But this cannot be ascertained definitely from the record before us, though apparently believed by the engineer. For many years prior to the trial the road had been graded and the water from the [Ed. Note.-For other cases, see Waters and north pond carried through a culvert thereWater Courses, Cent. Dig. § 185; Dec. Dig. in and along a ditch on the south side of the 157.] highway about 80 feet west, and from that

Where, by the execution of an agreement between the plaintiffs and the defendant's predecessor in title to extend an existing drain through plaintiff's' land, such land was benefited by carrying the water to an existing pond, and other wise, the improvement having been made at great expense to defendant's predecessor in title for the mutual benefit of the parties, the license to extend the drain was not revocable as without consideration.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

point the water passed southwest into plain- tion, and in the latter D. L. Pascal for them tiffs' land down the swale. The small pond stopped the tile defendant had laid a few immediately south of the highway was drain- rods west of the line fence in their land in ed into this ditch on the south side of the or near the lower pond. The obstruction was road. In 1895 Martin Hynes (defendant's removed by an employé of defendant in 1912 father-in-law, through whom she acquired the but again replaced by Pascal. Thereafter land), with the consent of George Pascal defendant began laying a drainage tile con(plaintiffs' father, from whom they derived necting with that at the lower pond in her title), excavated a ditch from the culvert land and extending north to the tile carry. along the road across his south 80 into plain- ing the surface water from her north 80, tiffs' land about ten rods and laid tile there- when this action was begun aided by 'a temin. The water from this tile caused a mud-porary writ of injunction restraining her hole, and in 1904 defendant's husband, then owner of the land (she subsequently took under him), in pursuance of an agreement with plaintiffs, through D. L. Pascal, extended the tile drain to the pond on the line about 80 rods south of the highway, and the following year additional tile was laid so as to cast part of the water into the pond on defendant's side of the line. As said, the tiling last done was in pursuance of an agreement entered into by plaintiff D. L. Pascal and one Jensen, representing defendant's husband. Pascal testified that it was agreed:

"That if I would not stop up the tile and let it go until after they got the crop in, and would allow them, until after they got the crop of corn-in, allow them to carry this water down the natural water course to this pond, they would build a fence around it whenever I got ready to tile to the pond, and he would go ahead with it and see that one-half the expense was born by Mr. Hynes; * that he should keep this ditch in repair and maintained. That is all the tile drain mentioned as having been

laid."

Donahue testified that:

"After we put the tiling in I know Hynes wanted Mr. Pascal to give him some record about the tile. He asked Mr. Pascal if he was satisfied, and Mr. Pascal said, 'Yes,' he was perfectly satisfied. And he wanted him to give him some writing about it. Mr. Pascal said he would not because he said if there became any holes in the tiling he expected Mr. Hynes to fix them, and Mr. Hynes said that would be all right."

from proceeding. A cross-petition was filed praying that plaintiffs be restrained from interfering with the tile drain laid by her husband and father-in-law in plaintiffs' land and from preventing defendant entering on their land for the purpose of repairing and maintaining the same. On hearing the court dismissed both the petition and cross-petition, and both parties appeal.

[1] I. The tile drain constructed by Martin Hynes in 1893 carried the water from the pond north of the road into the swale on plaintiffs' land. The drain was laid with the then owner's consent and the surface water carried through it from defendant's land as well as part of plaintiffs' with the acquiescence of the latter, the then owner under whom they claim until 1904, more than ten years, by reason of which defendant has acquired a prescriptive right to the use of the drain in plaintiffs' land. Hatton v. Cale, 152 Iowa, 485, 132 N. W. 1101; Dorr v. Simmerson, 127 Iowa, 551, 103 N. W. 806; Vannest v. Fleming, 79 Iowa, 638, 44 N. W. 906, 8 L. R. A. 277, 18 Am. St. Rep. 387.

[2] Plaintiffs contend, however, that defendant has abandoned this easement by beginning the construction of the tile drain from the lower pond north in her land with the purpose of carrying the surface water above the road which had flowed through the tile into plaintiffs' pond. They had closed the drain at or near the lower pond, so as to prevent drainage in that direction, and un

The tiling drained out the ponds near the highway, but plaintiffs claim that defendant did not keep it in repair; D. L. Pascal testi-doubtedly defendant had begun tiling through fying that:

"The dirt was washed off in one place in particular, and there were other places where there were holes where the dirt was gone, and it made holes in the tile. When a heavy rain came the water would come out, boil up out of those places, and there was danger of the stock stepping in those places and getting hurt. Horses were in there. Holes have been there at different times. In the fall of 1910 there were at least six of them. In 1908 there was a place over there at the road where the dam was built. In 1908 I fenced around this one place to keep the cattle from destroying the tile. We put the fence there some time about the 1st of May, 1908, and I moved it in the fall of 1909. I took the fence down and hauled dirt to cover the tile up. There were holes there in 1912. They had sent some men in my field to repair the ditch. They filled it up in places and dug down into the holes and banked it up."

In the fall of 1909 and 1910 plaintiffs laid a tile drain from the pond into which that previously mentioned emptied southerly into

her own land in order to avoid farther controversy. But she had not completed the work or connected with the pond at the highway and was interrupted by this suit from carrying out her undertaking. She may have entertained the design to yield the other drain if this proved successful in carrying off the water, but there is nothing in the record indicating more. Even this much had been forced upon her by the tactics of plaintiffs in stopping the tile and insisting that it continue closed.

To constitute an abandonment, two elements are essential: (1) The intention to abandon; and (2) the act of abandoning. Unless an easement is actually relinquished, it cannot be said to have been abandoned, regardless of what the intention may have been. 1 Corpus Juris. 6. Whatever may have been the design of defendant, what she had done

the ponds. The plaintiffs' land was benefited by carrying the water to an existing pond instead of pouring it about 10 rods south of the road and by the incidental drainage of the swale on each side of the tile for a distance of 60 rods. At great expense to defendant's husband, the improvement was made, and for the mutual benefit of the parties, and resting on these considerations, the license is not revocable. Ruthven v. Farmers' Cooperative Creamery Co., 140 Iowa, 570, 118 N. W. 915. The remedy of plaintiffs is not through revocation but upon defendant's refusal or omission on demand to repair the tile drain and exact recompensation for the expense thereby incurred. See Robinson v. Luther, 140 Iowa, 723, 119 N. W. 146.

[7] IV. The testimony of Pascal that the tile drain, being constructed by defendant, would increase the flow of water into the lower pond, evidently was based on the supposition that the drain through plaintiffs' land would be closed. With that open there would be no material increase, and the court rightly dismissed plaintiffs' petition praying that the construction of the tile drain by defendant be enjoined.

acquiescing in plaintiffs' interference with was better drained of the water settling in the drain in their land, rather than enforce her rights in court, did not amount to the abandonment of her right to the easement. [3] II. In 1904 the drain was extended south through plaintiffs' land to the lower pond, and additional tile was laid the next or second year extending into defendant's land, so that, as we understand, the water would empty into the pond at different places. This was done under agreement between defendant's husband, who then owned the land, and D. L. Pascal; the former undertaking to keep the drain in repair and contribute half the expense of draining the pond out when the latter elected so to do. From this recital it is manifest that no waiver of the existing easement was involved in entering into this agreement. On the contrary, it recognized the right of defendant's husband to cast the surface water from his land into the swale in plaintiffs' land and undertook to dispose of it further. Nothing to the contrary appears in Robinson v. Luther, 140 Iowa, 723, 119 N. W. 146. In Raleigh v. Clark, 114 Ky. 732, 71 S. W. 857, relied on by appellants, the parties had agreed that an existing ditch be extended, and that Clark should keep that excavated in Raleigh's land to a creek cleaned. This he failed to do, and the trial court instructed that no damages could be recovered for injury caused by water flowing through the existing ditch, if it had been in operation 15 years, even though Clark failed to keep his agreement, and but for such failure the injury would not have occurred. This was held to be error for that Clark, having received the benefit of his agreement, must assume the burden, and that, having undertaken that the water be carried off in a manner different than through the existing ditch, he thereby waived any right to have it carried off as before. Under the agreement of 1904 in the case at bar, the water was to be carried through the tile laid in 1893 as before; the only change being that it was carried through the tile then laid rather on the bottom of the swale. There was no waiver of the easement to carry the surface water through the tile in plaintiffs' land.

[4] III. It may be conceded that the tiling laid by defendant's husband in plaintiffs' land got out of repair at different times, and that defendant did not restore it in the man

The relief prayed by defendant (i. e., that plaintiffs be enjoined from interfering with tile drain constructed by defendant and his father in plaintiffs' land and with defendant's repair and maintenance thereof) should have been granted.

Affirmed on plaintiffs' appeal. Reversed on defendant's appeal.

DEEMER, C. J., and GAYNOR and SALINGER, JJ., concur.

HATCH et al. v. BOARD OF SUP'RS OF
LYON COUNTY et al. (No. 29818.)
(Supreme Court of Iowa. April 9, 1915.)

1. EVIDENCE 317-HEARSAY-ADMISSIBIL

ITY.

board of county supervisors for the establishOn certiorari to review proceedings of a ment of a consent highway, evidence was inadmissible, as hearsay, that a husband who had signed the consent instrument, although his wife told the witness that she was present at the was the record owner of the land involved, had signing and had heard certain promises made by the one presenting the consent for signature.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. 317.]

2. HIGHWAYS

60-ESTABLISHMENT-CON

ner exacted by the agreement. Nothing appears to have been said concerning the manSENT-REVIEW OF PROCEEDINGS. ner of enforcing this agreement, so that the On certiorari to review proceedings of a right to forfeit or revoke the license to ex-board of county supervisors establishing a contend the drain is not to be inferred, unless the license was naked and without consideration. See Jones v. Stover, 131 Iowa, 119, 108 N. W. 112, 6 L. R. A. (N. S.) 154; Ruthven v. Creamery Co., 140 Iowa, 570, 118 N. W. 915.

[5, 6] But the agreement was based on mutual considerations. The land of defendant

sent highway, evidence that a husband, who had signed the consent instrument, although the record title was in his wife, had given in the land to the assessor as the property of his wife, but had asserted at the time that the land in equity belonged to him, was inadmissible, because, in determining whether the board had had presented to it a petition bearing the signatures of the owners of certain land, the court could not determine whether the title was in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

any one other than the record holders, and because such statements of the husband were not competent evidence of his title.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 204-213; Dec. Dig. 60.] 3. HIGHWAYS

of such testimony? (3) May it be shown, aside from the return, that some landowner did not give written consent? (4) Did the testimony admitted establish such written consent?

its proper jurisdiction, and had not otherwise acted illegally, we have for solution the following ultimate questions: (1) Did the district court err in receiving testimony ad60-ESTABLISHMENT-CERTI-ditional to the return? (2) Can it be shown ORARI TO REVIEW PROCEEDINGS-PAROL EVI- on the certiorari hearing that the petition DENCE-ADMISSIBILITY. was materially altered without consent of On certiorari to review the establishment the signers, and, if it can, what is the effect of a consent highway by a board of county supervisors, although oral testimony that a wife, holding the record title to the land involved, gave consent by directing her husband to sign the petition, was admissible, nevertheless, under Code, § 4160, providing that on certiorari the district court hears the matter upon the record, proceedings, and facts as certified and such other testimony, oral or written, as either party may introduce, such oral testimony could be addressed only to the question whether the tribunal in review had exceeded its jurisdiction or otherwise acted illegally, i. e., whether the wife, as owner of land affected by the highway, had given written consent as required by Code, § 1512, providing for the establishment of such a highway if the written consent of owners of all lands affected be filed in the auditor's office; the filing of the consent being a condition precedent to the board's jurisdiction.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 204-213; Dec. Dig.

60.]

4. HIGHWAYS 28-ESTABLISHMENT WRITTEN CONSENT-STATUTE.

Under Code, § 1512, providing for the establishment of highways, if the written consent of all the owners of the lands to be used for that purpose be first filed, although a wife, the holder of the record title to land, directed her husband to sign the petition for the establishment of a highway for her, such signature of the husband was not a compliance with the expressed intent of the Legislature that the paper presented to the board for action should show without aid from oral testimony that the abutting owners consented, and so was not efficient to perfect the consent.

[Ed. Note. For other cases, see Highways,
Cent. Dig. §§ 40-46; Dec. Dig. 28.]
Appeal from District Court, Lyon County;
William Hutchinson, Judge.

Certiorari to review the legality of the establishment of a highway. The district court dismissed the petition, and plaintiffs appeal. Reversed.

lants.

S. D. Riniker, of Rock Rapids, for appelSimon Fisher, Co. Atty., of Rock Rapids, for appellees.

SALINGER, J. Before the board of supervisors, this was a proceeding to establish a consent highway under the provisions of section 1512 of the Code, which provides that such road may be established "if the written consent of all the owners of the land to be used for that purpose be first filed in the auditor's office." One Anna Blum was such owner, and her name does not appear on the petition filed with the auditor. It does bear the signature of her husband.

I. Before we are concerned with the effect of some of the testimony taken against objection, we must dispose of its admissibility.

[1,2] One Anna Blum was the record owner of land which would be used if the establishment of the consent highway in controversy be not annulled. It became a controlling question on the hearing in district court whether the owner of that land had given written consent to such establishment. To support the contention that such consent was given, testimony was offered tending to show: (1) That, while Anna did not sign, her husband, who signed his own name to the consent, was in truth the owner of said land; (2) that Anna directed her husband to sign his name to the consent-for which it is claimed that it amounts to written consent on her part. This testimony was taken over objections, which are broad enough to assert that: (1) The court should not, on certiorari, go into the line of investigation to which this testimony was addressed. Such testimony was inadmissible, even if there was right to enter upon such investigation on proper testimony. (3) If it be assumed such testimony was admissible and should be considered, it fails to establish the written consent required.

(2)

(a) Some of this testimony should not have been received if it be assumed there was right to entertain the issue upon which it was offered, and though it be further assumed that proper oral testimony would have been admissible. In any view, it was error to let a witness say the husband told him the wife was present at the signing, and heard certain promises then made by one who presented the consent for signature. It is manifestly incompetent.

(b) And so of testimony, in effect, that the husband gave in the land to the assessor as the property of the wife, but asserted to the assessor at the same time that the land in truth and in equity belonged to the husband. This was (1) incompetent, irrelevant, and immaterial, generally; (2) on a hearing The writ of certiorari may be granted on certiorari involving whether the board where it is alleged that the tribunal below had a petition bearing the signature of the exceeded its proper jurisdiction, or is other-owner of certain lands, the court could not wise acting illegally. Code, § 4154. try out whether some one other than the record owner was the owner of such land; (3) giving in land for assessment as belonging to

In determining whether the district court held rightly that the board had not exceeded